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To Do More Than Hand Down Judgments

The war crimes trial of the Nazi doctors that led to the code was held in Nuremberg, West Germany, from December 1946 to August 1947. Nuremberg was chosen partly for symbolic reasons, for it was there that the Nazi Party held giant, theatrical rallies designed both to impress those faithful to the Reich and to intimidate those who opposed it.

The doctors’ trial began a few months after the conclusion of proceedings against two dozen leaders of the Third Reich, including Hermann Goering, Rudolf Hess, and Joachim von Ribbentrop. Although the American forces occupying Germany had not at first planned to conduct an inquest on human experimentation, their decision changed as information emerged about the medical atrocities committed in the concentration camps. The details of what prosecutors called “the medical case” so shocked them that they decided to pursue the matter as a war crime under the charter of the international tribunal.

Medicine had a central place in the Nazi enterprise, for the Nazis believed doctors had a special role in improving the “Volk.” Jews, Gypsies, homosexuals, the mentally retarded, and others were singled out as corrupting influences in the German national body, much like bacteria invading the individual. The view that these groups constituted a kind of public health menace implied an instrumental role for the medical profession in the business of “diagnosing” and “treating” the problem.

Although many doctors were involved in the Nazis’ racial hygiene policies-and nearly half of German doctors were Nazi party members-those who had access to concentration camp inmates for research purposes had to be well connected with the Nazi political hierarchy. Although we are not accustomed to thinking of the Nazi doctors in the mundane terms of careerism, part of their motivation was typical academic ambition. These scientists wanted to be among the first to make the medical breakthroughs that would advance the military goals of the Third Reich and make them heroes of racial medicine.

The special role given medical science in the Third Reich created an excellent opportunity for a few influential researchers to avail themselves of experimental subjects they could not have obtained under other conditions. The fact that most concentration camp inmates were eventually slated to die helped doctors rationalize their use as research subjects. The urgency of the war effort and the endorsement of the highest state authorities further encouraged these scientists to perform human-subjects research on problems of pressing concern on the battlefield.

One of these was the most efficacious way to thaw Luftwaffe fliers forced to bail out over the frigid waters of the North Sea. To test various thawing techniques Nazi researchers exposed a number of prisoners to freezing conditions and experimented with various methods of reviving them. Other experiments for military purposes included forcing subjects to drink only seawater to determine how long pilots could survive once downed in the ocean and establishing the point at which lungs exploded due to atmospheric pressures, an important issue for fighter pilots seeking to avoid anti-aircraft fire. An estimated 100,000 human beings died horrible deaths in the course of experiments at Auschwitz, Buchenwald, Dachau, Sachsenhausen, and other camps.

The brief against the defendants was delivered on December 9, 1946, by chief prosecutor Telford Taylor. In his opening statement, Taylor declared that the men were on trial for “murders, tortures, and other atrocities committed in the name of medical science.” But the prosecutors soon discovered that the case raised issues that were more problematic than they had realized-among them the lack of internationally recognized codes of medical ethics by which the behavior of the Nazi doctors could be judged. Nonetheless, nearly eight months later, after harrowing testimony about the experiments by surviving victims, the Nuremberg judges sent seven of the defendants to their deaths and sentenced eight more to lengthy prison terms. (None of those who were imprisoned served a full sentence, and many went on to distinguished careers in postwar Germany.)

The three-judge panel decided that it needed to do more than simply hand down the judgments. The members decided to codify the rules they believed should govern the use of human beings in all medical research. The Nuremberg Code begins: “The voluntary consent of the human subject is absolutely essential. This means that the person involved should … be so situated as to be able to exercise free power of choice, without the intervention of any element of force, deceit, duress, over-reaching, or other ulterior form of constraint or coercion.” The code also included provisions requiring that the scientific importance of the question be manifest, that risks to the subjects be kept to a minimum, and that prior experimentation be performed on animals.

Despite its powerful moral influence, the code carried no legal authority. No mechanisms were created to enforce it. In fact, the very circumstances that gave the code its high moral standing-the horrors that surrounded its origins-partly account for its relative lack of influence in the postwar years: ordinary researchers found it hard to believe that the code need be applied to their own work.

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